The Tribunal’s Judgment on a joint application by the Mastercard and Visa Defendants (together the “Defendants”) which sought to establish which legal entities have validly opted in to these proceedings (the “Opt-in Application”).
The Defendants challenged the inclusion of 127 legal entities named in the Opt-in class register. They also challenged entities opting in to the proceedings where their place of domicile is outside the UK.
The Class Representative submitted that the proper construction of the legislative framework allowed for entities to opt in at the undertaking level. This meant that the corporate groups that submitted opt-in notifications opted in all legal entities within their corporate group. The Class Representative also invited the Tribunal to infer that there was an intention to opt in all entities which met the definition of a class member within each undertaking that completed an opt-in notification. The Class Representative further submitted that the persons who submitted the opt-in notification had authority, whether actual or ostensible, to opt in each entity within the corporate group which the person represented.
On a protective basis, the Class Representative applied for permission under Rules 4, 19 and 82(2) of the Competition Appeal Tribunal Rules 2015 for those legal entities which had not completed an online registration form by the opt-in deadline to be given permission to opt in after the deadline. These entities were categorised into various groups depending on the circumstances of the application.
The Tribunal rejected the Defendants’ contention that non-UK domiciled claimants are not eligible for the opt-in class. However, the Tribunal agreed with the Defendants determining that only a natural or legal person can opt in to collective proceedings and not an undertaking. Likewise, the circumstances did not permit any inference about the intention of legal entities that were not identified in an opt-in notification. Having reached these conclusions, it was not necessary to deal with the arguments about agency.
Regarding the applications to opt in late, the Tribunal noted that these applications were not made promptly, with there being no good reason for the delay. The Tribunal stated there were broader policy considerations regarding the integrity of the opt-in regime which would be undermined if parties do not take the opt-in deadline seriously and if they do not feel obliged seek to address any problems promptly and with proper explanations of the reasons for the problem. On these bases, permission to opt in late was refused.
